On 3 November 2008 the key provisions of Part 1 of the Tribunals, Courts and Enforcement Act 2007 came into force, quietly revolutionising the administrative justice system.
The changes create a new simplified and more consistent legal framework for tribunals. They also provide scope for the transfer of certain judicial review proceedings from the chronically over-stretched Administrative Court to a new tribunal. Potentially, these are significant steps toward making administrative justice more accessible and efficient.
For those operating in jurisdictions transferred into the new tribunal system there will be new rules and procedures, and to a limited extent new tribunal members. The new regime should in principle deliver a more streamlined and efficient service, with new, more clearly defined rights of appeal.
The streamlining of the tribunal system and the transfer of some judicial review claims from the High Court will also have a knock-on effect for the rest of the administrative law system. Once the arrangements have been fully implemented, some of the pressures on the Administrative Court should be lifted, allowing it to focus attention and resources on those matters that remain within its jurisdiction, and reduce the time taken from claim to trial.
New tribunal system
There have historically been more than 70 different administrative tribunals, created largely on an ad hoc basis over many years. Those tribunals had no common standards of performance or accountability, and constituted a fragmented and complex administrative justice system.
On 3 November two new tribunals came into existence: the First-tier Tribunal and the Upper Tribunal.
The Upper Tribunal is a superior court of record, which means that it stands on a par with the High Court, and its activities cannot be challenged in or reviewed by the High Court. Review of its decisions can only be sought in the Court of Appeal where the proposed appeal would raise some important point of principle or practice or if there is some other compelling reason for such an appeal.
These new tribunals, together with employment tribunals, the Employment Appeal Tribunal and the Asylum and Immigration Tribunal will be presided over by a new Senior President of Tribunals (Carnwath LJ) and subject to consistent rules and procedures.
The First-tier Tribunal and the Upper Tribunal will be divided into chambers dealing with different subject matters. From 3 November there are three chambers of the First-tier Tribunal:
- the Social Entitlement Chamber
- the War Pensions and Armed Forces Compensation Chamber
- the Health, Education and Social Care Chamber
The Upper Tribunal will initially just have one chamber: the Administrative Appeals Chamber. It will hear appeals from the First-tier Tribunal and a limited number of other existing tribunals. Certain judicial review claims will also be transferred to it from the Administrative Court.
Through the chamber structure, the specialism and expertise of existing independent tribunals will be preserved, but the ability of members, where expertise allows, to be transferred between chambers will allow for a more efficient service.
The First-tier Tribunal
The First-tier Tribunal and Upper Tribunal (Chambers) Order 2008 establishes the first three chambers of the First-tier Tribunal.
The work of the Social Security and Child Support Appeals Tribunal, the Asylum Support Tribunal, and the Criminal Injuries Compensation Appeals Panel will be transferred to the new Social Entitlement Chamber. This Chamber will have assigned to it all functions relating to appeals:
- in asylum support cases
- in criminal injuries compensation cases
- regarding entitlement to, payments of, or recovery or recoupment of payments of, social security benefits, child support, vaccine damage payment, tax credits and child trust funds
- regarding payments in consequence of diffuse mesothelioma
- regarding a certificate or waiver decision in relation to NHS charges
- regarding entitlement to be credited with earnings or contributions
- against a decision as to whether an accident was an industrial accident
The Special Educational Needs and Disability Tribunal, the Care Standards Tribunal, and the Mental Health Review Tribunal will be transferred into the new Health, Education and Social Care Chamber. This chamber will have assigned to it all functions relating to:
- appeals against decisions related to children with special educational needs
- claims of disability discrimination in the education of a child
- applications or appeals against decisions or determinations related to work with children or vulnerable adults
- appeals against decisions related to registration in respect of provision of health or social care
- appeals against decisions related to registration in respect of social workers and social care workers
- appeals against decisions related to the provision of childcare
- appeals against decisions related to independent schools or other independent educational institutions
- applications and references by and in respect of patients under the provisions of the Mental Health Act 1983 or paragraph 5(2) of the Schedule to the Repatriation of Prisoners Act 1984.
The new War Pensions and Armed Forces Compensation Chamber will take over the current work of the Pensions Appeal Tribunal (England and Wales). It will consider all appeals under the War Pensions (Administrative Provisions) Act 1919 and the Pensions Appeal Tribunals Act 1943.
The Upper Tribunal
A key feature of the new framework is a structured appeals process for tribunal decisions. In the absence of such a structure, many challenges to tribunal decisions have ended up in the Administrative Court in the form of judicial review proceedings.
Under the new regime, the First-tier Tribunal can review its own decisions, either on its own initiative or on the application of a person having a right of appeal. If the First-tier Tribunal decides, following review, that a decision should be set aside, it may either re-make the decision itself or refer the matter to the Upper Tribunal.
Parties to cases heard in the First-tier Tribunal may also appeal directly to the Upper Tribunal on points of law. The rights of appeal from the Upper Tribunal to the Court of Appeal are heavily restricted.
The provisions that came into force on 3 November also make provision for the Upper Tribunal to hear judicial review claims which are currently in the High Court's jurisdiction. The Upper Tribunal will hear judicial review claims where various conditions are met, the most important being that the claim is of a type specified by a direction made by or on behalf of the Lord Chief Justice. However, the Lord Chief Justice is yet to make any such directions.
Plans to increase the jurisdiction of the new tribunals
More new chambers are planned for both the First-tier and Upper Tribunals.
Notably in the First-tier Tribunal:
- The Taxation and Duties Chamber will come into existence in April 2009. This chamber will take over the current jurisdictions of the General and Special Commissioners of Income Tax, the VAT and Duties Tribunal and the Section 709 Tribunal.
- A General Regulatory Chamber is planned for implementation in two stages, in October 2009 and January 2010. The jurisdiction of this chamber has not yet been finalised.
- Consultation has just ended on transferring the jurisdictions of the Asylum and Immigration Tribunal into a new chamber of the First-tier Tribunal. The current timetable envisages transfer, at least in part, by the summer of 2009.
The closed consultation by the UK Border Office on "Consultation: Immigration Appeals Fair Decisions; Faster Justice" further envisages the transfer of jurisdiction for judicial reviews in immigration cases to the Upper Tribunal.
The government plans to transfer the functions of the Lands Tribunal to a new chamber of the Upper Tribunal from April 2009.